Look-alikes: Was the wrong man convicted?
by Pete Shellem/The Patriot-News May 27, 2007
The woman tried to knee him in the groin, and they fell to the ground scuffling. He eventually got on top, straddling her and threatening to make her perform a sex act. Suddenly, the assault stopped. He told her to get up and run the other way while he walked back toward the parking lot.
As the victim's running partner arrived, she saw a man driving a two-toned gray pickup truck pulling out of the lot.
Both women would later say they were sure it was Dubbs.
A year later, on June 26, 2001, a woman was running along the Conewago Recreation Trail off Route 283 in Mount Joy Twp. with her 18-month-old son in a jogging stroller. A man fitting the description of the Lancaster Junction trail attacker stepped out of the woods into her path, holding a sharpened stick.
He pointed the stick at her son and told her to show him her breasts or "the kid gets hurt." She did as he demanded, and he touched her breast. He then made her get on her knees, and he pulled out his penis, demanding that she touch it. When he asked her to kiss it, she refused. He got up and told her to run one way while he ran the other. She said she screamed the whole way to her car.
Mug shots become key
That same day, an Elizabethtown detective who met with the victim to create a computerized image of the attacker had a hunch. He thought the image looked like Dubbs, whom he had arrested for making obscene phone calls five years earlier. Dubbs also had a record for indecent exposure; he was caught masturbating in his car in 1998.
The detective told the investigating officer, Carl D. Steinhart, an assistant chief of the Mount Joy police, about his hunch. Steinhart presented the woman with a book of mug shots of 403 white males compiled by the Elizabethtown police. He told the victim a possible suspect was in the book.
According to Steinhart, when she passed Dubbs' photo the second time, she pointed to the picture.
"She immediately pushed the book away from her and kind of went back. ... She had a very dark tan at the time, and I remember she immediately had goose bumps on her arms, and her neck became visually red and flushed, even with her being as tan as she was, and she wanted to distance herself as far away as she could from the book and Mr. Dubbs," Steinhart said.
Steinhart took a new photo of Dubbs and put it in a six-man photo array, and the woman had the same reaction, he said.
Dubbs offers alibis
Steinhart questioned Dubbs, who admitted he had a "sexual problem," referencing his previous arrests. But when Steinhart arrested him on numerous felony charges on July 11, 2001, Dubbs' only official statement was "I don't give a [expletive]. I didn't do anything wrong, so I'm not worried about anything; you've got the wrong [expletive] guy."
Dubbs should have been worried.
After the news of his arrest appeared in Lancaster newspapers, the first victim, noting the similarities in the attacks, called police and picked Dubbs out of a photo lineup.
In May 2002, Dubbs stood trial on charges relating to both assaults in Lancaster County Court. He was convicted of all charges.
He had an alibi for the first assault. He had a job that required him to punch in and out, and his boss said Dubbs couldn't have left the job site without shutting down his part of the plant.
His alibi for the other assault was not as solid -- he said he was fishing with a friend. However, the bait store owner remembered the date and said Dubbs was there.
Dubbs' attorney, Assistant Public Defender James A. Gratton, pointed out that Dubbs had tattoos covering his forearms that the victim with the stroller would have seen while he was brandishing the stick.
The victim in the first assault told police she was sure she saw her attacker in a car that passed her two days later, Gratton told the jury. Using a license number from the victim, police tracked down that man, who didn't remotely fit the description and had an alibi.
Dubbs didn't have a two-toned gray pickup truck like the one seen after the first assault.
It didn't matter.
The women were unequivocal in their identifications. It was the only evidence against him.
After Dubbs was convicted, Eakin told a Lancaster newspaper she was glad the jury saw the truth.
"This whole idea that eyewitness identification must be supported by some sort of scientific evidence is a huge misnomer," Eakin told the newspaper. "I'm just glad the jury saw through that smoke screen."
Memory experts weigh in
The truth is that misidentification by an eyewitness is the most prevalent cause of wrongful convictions, according to the Innocence Project at the Benjamin N. Cardozo School of Law.
Of 200 exonerations by DNA it has documented and studied since 1989, more than 70 percent of the convictions were based completely or partially on witness testimony.
In 1999, the National Institute of Justice issued a report advising law-enforcement agencies that they needed to change the way they do lineups. It recommended a "double blind" method of presenting a photo array so the officer presenting it did not know the identity of the suspect to avoid giving subconscious cues.
It also said photos should be shown one at a time rather than in an array. Photo arrays leave witnesses making a relative judgment, like a multiple-choice test, while the single photo method is more like a true-or-false answer, experts said.
A key recommendation was that, to reduce guessing, investigators should tell witnesses that the suspect might not be in the lineup.
Experts on memory and identification said you only have one chance to make a good ID.
Consider Penny Beerntsen, a commissioner of the Wisconsin Criminal Justice Study Commission, who became an expert on eyewitness misidentification through misfortune.
In 1985, she was beaten and sexually assaulted as she jogged along the shore of Lake Michigan in Two Rivers, Wis. She picked Steven Avery out of a lineup conducted similarly to the one in Dubbs' case. It wasn't until 18 years later, when DNA testing was performed on a hair found on her after the assault, that she learned she had picked the wrong man.
She said the victims probably honestly believe they have the right man.
"If there had not been DNA, I would have said the same thing," she said. "When I saw the picture of the man who did this, I would have never picked him out. I absolutely did not recognize him."
She said memory experts have concluded that once a witness sees a composite and later picks someone out of a photo lineup, the photo and the composite become enmeshed with the memory.
"You can never get back to the original uncontaminated memory," Beerntsen said. "So in my mind, Steven Avery was my assailant. That was the person I saw in my nightmares. That was the person I saw in my flashbacks."
A 2005 study by the Innocence Institute at Point Park University in Pittsburgh found that most police departments in Pennsylvania ignored the federal recommendations.
The investigation into Dubbs followed the opposite of those recommended procedures.
The investigating officer told the victims that a suspect was in the array. The woman who picked out Dubbs from 403 other photos had to look through the book twice before deciding on him. The officers in both cases knew the identity of the suspect.
Gratton tried unsuccessfully to get the identifications suppressed.
"There aren't many guys I've represented over the years that I didn't think did it," Gratton said. "Ted's one of the few."
He said Brown's confession should warrant a new trial, at least.
"I had a good alibi to begin with," he said. "Heidi thought she was losing this case. [Brown's confession] would have pitched the jury the other way over the fence."
3 more attacks
In a court hearing, Eakin said the attacks attributed to Dubbs were about a year apart, a signature of a criminal.
The next three attacks attributed to Brown occurred about a year apart. The first two were also on the Conewago trail, close to the site of the second attack for which Dubbs was convicted.
On Sept. 26, 2002, a woman was attacked by a man who brandished a knife and forced her off the side of the trail. He made her expose her breasts and rubbed them, then forced her to touch his penis and perform a sex act.
On Sept. 23, 2003, Mount Joy Twp. police received a call from another woman who said she had been assaulted on the same area of the trail in a similar fashion.
Dubbs was in prison at the time of both attacks.
The DNA found on the second victim matched Brown when he was caught two years later. He pleaded guilty to both attacks and was sentenced on May 18 in Lancaster County Court. Altogether, he is serving 50 to 100 years in state prison for convictions in Cumberland, Dauphin and Lancaster counties.
After Brown pleaded guilty to five assaults on six victims in Dauphin County in November 2006, he confessed to the lead investigators that he had also committed the trail assaults in Lancaster County and an assault in Allegheny County.
"It just seemed too bizarre that lightning struck three times in the same place," said Dauphin County District Attorney Edward M. Marsico Jr., who gave Brown's statement to Lancaster County prosecutors.
"At first, we weren't sure if it was just a coincidence or if Brown had known about them, but Brown did confess to those, and now it's up to police and prosecution and defense to check it out and see if Brown's confession is reliable," Marsico said.
Eakin said she has not performed any follow-up investigation because it is not her responsibility. That is up to Dubbs' attorney, she said.
Dubbs faces a hearing on his post-conviction petition on July 9. His court-appointed attorney, Vincent J. Quinn, said he is still investigating Brown's claims.
Eakin said one of the victims Dubbs was convicted of attacking saw Brown and insisted he was not her assailant.
In his statement, Brown laughed when he referred to Eakin.
"I know I'm getting a guy out of jail, and it's cool," Brown said, according to a transcript of the interview with Dauphin County Detective Todd Johnson and state police Cpl. George Cronin. "He shouldn't be in there for what I did. I hope Heidi gets fired over it."
When the investigators asked whether there was an ulterior motive for the confession, Brown said no. He was upset that the law enforcement agencies outside Dauphin County were "just out for themselves, so they all look good," he said.
"I just want to clear up what's wrong, what I did wrong, make peace with it, 'cause I got to stand before the maker some day, and I can't lie to him," Brown said.
Brown's Dauphin County attorney, Diane Morgan, said Brown was upset mainly because the other counties wouldn't let him plead guilty to all the cases in Dauphin County Court.
Brown's details match
Brown's descriptions might not be as "misinformed" as Eakin claims.
While he claims memory lapses about some details, he describes the crimes almost as the victims did.
In both cases, he knew which direction the victims ran when they parted, and he knew that the women screamed as they ran away, which was not reported in newspapers.
Brown said he ended one attack because he heard a car coming, which corroborates the jogging partner's testimony that a man in a gray pickup truck was leaving the parking area as she pulled in.
He also said he always wore aviator-style sunglasses when he committed his attacks, which the victims in Dubbs' cases had described.
Investigators were unable to find any connection between Dubbs and Brown, Marsico said. Brown said he wasn't aware someone else had been convicted of the two trail attacks until the investigators told him.
Beerntsen said that, in her experience, people involved in the criminal justice community are unwilling to admit when mistakes are made.
"Maybe my perspective has changed because I was involved in this wrongful conviction, but I think in the long run, it would be really helpful if prosecutors, police, judges, anybody who is involved in a wrongful conviction would say, 'We made a mistake, and what should we do in the future to make sure we don't make more of these mistakes?' " Beerntsen said.
Timeline of assaults
Pete Shellem 717-255-8156 or email@example.com